Afghanistan: The Negotiating Minefield

October 24, 2013: Secretary of State John Kerry’s surprise visit to Kabul wound up, 24 hours later, with two smiling figures facing the cameras and declaring success. After last June’s abortive talks with the Taliban, U.S. predictions of gloom at the prospect of missing an October 31 deadline, and months of tough talk from Afghan President Karzai, this was an unexpected finale.

But it’s not a finale, at least not yet. This latest twist in the tangled story of U.S.-Afghan relations illustrates at least three of the key explosives buried in the negotiating minefield. The path to success, if there is one, will involve focusing creatively, on the substantive differences, and not being trapped by traditional negotiating processes.

Kerry’s visit clearly eased the first procedural problem, the deadline trap. Americans regularly use “action forcing events” as a spur to action. The time factor is especially important for the U.S. military, which devotes major resources to developing detailed operational plans stretching out months or years. Preoccupation with timing runs through many international negotiations. Trade talks bump into Congressionally mandated time limits for U.S. negotiating authority. U.S.-India negotiations on a nuclear agreement faced a seemingly inexorable timeline in 2008, deriving from Congressional procedures needed to pass enabling legislation.

For Afghans, on the other hand, time is elastic. Deadlines are made to be worked around or ignored; they know Yankee ingenuity has found ways around them (at least sometimes). The U.S. practice of running the calendar backward from a “drop dead point” does not impel action by the Afghans. This clash of time concepts gives U.S. negotiators ulcers. But with the stakes this high, it is important to keep the timeline from once again dominating the process.

The second issue is the tension between institutional and personal negotiations. In Afghanistan, the personal dimension dwarfs all others. For Americans, the institutional perspective has at least equal weight. Key people get moved around. New negotiators may pick up their institutional briefs without a hitch, but lack the all-important personal relationship with their Afghan opposite numbers. Worse, Karzai feels disrespected by the U.S., and his relations with President Obama have been testy for years. Kerry’s decision to engage in hours and hours of personal talks with Karzai was a badly needed tonic.

Third, and most important, there remain important substantive differences. Afghan and U.S. objectives overlap, but are not identical. Karzai’s key requirement is to uphold Afghan sovereignty in fact and in appearance. All three big issues that are now unresolved derive from this concern. All three challenge important U.S. interests that cannot simply be waved aside.

Two of the unresolved issues are familiar. U.S. insistence that its forces have free rein in pursuing Al-Qaeda operatives reflects the 9/11 attacks that brought the U.S. into Afghanistan. This demand also clashes with Karzai’s need to show that the Afghan government is in control. Afghanistan also seeks a U.S. guarantee against external threats – a thinly veiled reference to Pakistan. The United States has never guaranteed one South Asian country against another, and neither the Obama administration nor congress is going to start by providing a guarantee between these two volatile neighbors. The standard U.S. negotiating solution would be to require detailed U.S.-Afghan consultations in case of a perceived threat to Afghan territorial integrity. For Karzai to accept this will require an unusually high level of trust in his U.S. interlocutors.

The third killer issue is who has jurisdiction over U.S. military personnel accused of crimes. The U.S. always insists on maintaining jurisdiction when it stations forces overseas. Iraq’s refusal to grant this led to a complete U.S. troop withdrawal. Four months ago, U.S. and Afghan negotiators had settled this issue. As Kerry left Kabul, it had emerged as the major problem area, which Karzai plans to submit to a traditional Afghan consultative body, a Loya Jirga. Americans may look on this as bait and switch. That is, however, a standard technique in the Afghan negotiating repertoire. In the abortive June talks, the Taliban set up a high profile office in Qatar, contrary to the previously agreed arrangements. That time, it was Karzai who cried foul.

For all these reasons, we are still some distance from “yes.” Further issues may lie buried in the text, which Karzai noted he had not yet read. Events in the coming weeks and months may make other issues come apart.

Understanding how Afghan and U.S. negotiating practices have worked in the past is important. But what is essential is that the negotiators keep their eye on the ball – on the substantive issues. Security guarantees, operating rules for U.S. troops, and criminal jurisdiction are tough issues requiring sensitive handling on both sides.

The bilateral security agreement is more than a document recording the two countries’ commitments. It is also a vehicle for building a relationship that gives them confidence in these commitments, even if the agreement itself falls short of both countries’ initial desires. The disconnect between Afghan and American negotiating dynamics must not obscure this larger objective.